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Updated: Jul 22, 2020

Author: Ankita Maji

UPES, Dehradun


An important purpose of arrest is to ensure that the accused is present at the time of his enquiry or trial and to make sure that he is available to receive his punishments on convictions. If this purpose can be attained without imposing detention on the accused during the inquiry or trial, it would be a perfect blend of two conflicting demands- liberty of an individual and promoting interests of justice. The provisions of Bail aim at such a blending. They have been enacted for the purpose of restoring liberty to the arrested person without endangering the objectives of arrest.

The number of the under-trial prisoners have been increasing fundamentally in recent times. Our judiciary takes time to conclude these cases as it needs to consider a number of factors relating to the offence committed by an individual. Keeping in mind the fundamental right of liberty granted to a person, detaining an individual for a really long time in jail makes it questionable. Denying an individual his freedom should be done only under rare conditions. Additionally, it should be noted that a person's freedom from the State's restriction lies on the discretion of the Judiciary, and such discretion must be practiced carefully and an appropriate judicial discipline must be followed.


Article 21 of the Indian Constitution grants personal liberty to every person, and is recognized as a fundamental right. Just like every other right under the Constitution, it is subjected to restrictions and curtailment so as to maintain a balance of law and order in the society. The criminal system of a country can be successful only when there is a perfect balance of rights of individuals and the rights of the society at large. The right of bail and the procedure provided under the Code of Criminal Procedure protects a person from unreasonable detention, in case his detention is not required to arrive at the ends of justice. ‘Bail is the rule, and jail is the exception’- this rule is being followed by courts while dealing with an application for bail as the question that lies here is the personal liberty of a person which is valued and protected under Articles 19, 21 and 22. In State of Rajasthan v. Balchand[1], it was held that an accused would be held in jail only under the circumstance that he would flee from justice, or commit the same offence again, tamper with evidence or harm the witnesses and the like.

The law of Bail has to harmonise two disputing requirements- The need to protect the society from danger and crime and on the other hand, the presumption of innocence till proven guilty. Even though it is a settled fact that every case must be viewed on the basis of its own merits, the jurisprudence of Bail has been quite unsteady and unsettling when it comes to the practical application of this concept.


The definition of bail was provided in Sunil Tulchand Shah v. Union of India[2], where the Supreme Court stated that, “Bail is a security obtained from a person arrested regarding an offence for the purpose of securing his presence during the course of trial.”

The concept and usage of bail could be traced back to 339 B.C. During the medieval period, the concept of Circuit Courts in Britain introduced the concept of bail. The provision of bail was predominant in India in the form of ‘muchalakai’ which refers to a personal bond and zamanat during the period of Mughals. The ancient Hindu jurisprudence used to have speedy disposal of cases, where slackness was not an option. Post-independence, the Indian Constitution provided automatic right of life and liberty to its people under Article 21. In India, the provision of Bail is dealt with under Code of Criminal Procedure (CrPC), 1973, under Sections 436-450, which also talks about Anticipatory Bail. Section 41 of CrPC also lays down the statutory right of Bail to an individual who is detained or is apprehending detention.

In the case of State of Maharashtra vs. Sitaram Popat Vetal[3], the Court laid down a number of factors to be considered before bail can be granted:

The nature of allegation and the intensity of punishment if there should arise an occurrence of conviction and the nature of supporting evidence;

Apprehension of meddling with the evidences or apprehension of threatening or harming the complainant;

Prima facie contentment of the Court in support of the charge.

In the case of SP Vital, it was held that the Court should refuse bail only on three grounds- If the accused is likely to escape, if he is likely to meddle or tamper with evidence or harm the witnesses, or if he is to repeat the offence again.

In 2013, son of a former Chief Minister of Andhra Pradesh was denied bail as the Court felt that his release would hinder the investigation as he could influence the witnesses and tamper with material evidence. The court felt economic offences involving huge public losses need to be considered seriously. In another case involving a senior politician, the Delhi High Court held that even though there was no risk of flight or tampering of evidence, the possibility of influencing witnesses through strong political connections cannot be ruled out. This decision was quite contrary to the view of the Court in the case of Sanjay Chandra v. CBI[4], which involved a similar economic offence -“it would be quite contrary to the concept of personal liberty enshrined in the Constitution, that any person should be punished in respect of any matter, upon which he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances." The legal system within which the judges work is very uncertain. The huge number of dissimilarities in the decision of the courts stays unexplained.

The objective of bail is to make sure the accused appears before the court during trial, as it is neither punitive nor preventative except in cases of preventive detention. Depriving someone of liberty is a punishment and should only be done after the guilt of the accused has been proved. The severity of the crime, therefore, cannot be a determinate for granting bail unless the guilt is established and the person is convicted.


Anticipatory bail was introduced after the recommendation of the 41st Law Commission Report of 1969 under Section 438 of CrPC which reads as follows:

(1) When any person has reason to believe that he may be arrested on an accusation of having committed a non- bailable offence, he may apply to the High Court or the Court of Session for a direction under this section; and that court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.

Apart from the fact that many people try to implicate false cases against their rivals in order to disgrace them or for the purpose of keeping them under detention in jail for some days, another reason for including such a provision in CrPC is to protect the fundamental rights of a person, and prevent its violation. It can also be called as pre-arrest bail, as opposed to an ordinary bail which is granted only after a person is arrested. The person seeking anticipatory bail, must qualify the grounds of granting bail, to the satisfaction of the courts. Reasonable restrictions can be imposed by the courts to maintain justice, while granting the bail. A question which arises in the name of restrictions is whether the court can impose a time limit upon the grant of this bail. An important case in this regard is Sushila Aggarwal and others Vs. State (NCT of Delhi) and another (2020), where the Court held that there cannot be any time limit while granting anticipatory bail, unless there is a special circumstance. The court also held that this bail does not end when the accused is summoned, or when the charges are framed, it continues till the end of the trial. The court in the case of Shri Gurbaksh Singh Sibbia and others v. State of Punjab[5]observed that Section 438(1) should be interpreted in light of Article 21 of the Constitution. This case also held that the condition of filing an FIR before seeking a plea of anticipatory bail is not important and the plea can be moved even earlier as long as the facts and grounds for apprehensible arrest hold good. The jurisdictional court can also grant a limited interim anticipatory bail under certain circumstances, while the plea for anticipatory bail is pending before the court. An important decision with regard to anticipatory bail was that the investigating authority can move to the apex court under Section 439 (2) to arrest the accused in case he violates any of the conditions of granting the bail such as absconding, or harming witnesses.

It should be kept in mind that anticipatory bail is not a ticket for committing a crime nor a protection granted from a crime that is committed. In Siddharam Satlingappa Mhetre v. State of Maharashtra[6], the Supreme Court had cleared the scope and nature of Anticipatory Bail. It said that even though it is based upon the Court’s discretion, its scope should not be restricted to only exceptional cases. After due consideration of the grounds of the case, if the court thinks it fit to grant an anticipatory bail, it shall notify the prosecutor, who shall present his arguments before the Court, on the basis of which the Court shall accept or reject the bail application. Anticipatory bail can be cancelled either on violation of any of the grounds or on discovery of new subsequent facts due to which the person is disentitled from bail.


It is a well settled principle that the rights of an individual must be protected by the Courts, but a judge should not be unreasonably influenced by liberty, disregarding the facts and circumstances of the case. In the famous case of GudikantiNarasimhulu and Ors v. Public Prosecutor[7]Justice Krishna Iyer held, “The subject of bail belongs to the blurred area of the criminal justice system and largely hinges on the hunch on the bench, otherwise called judicial discretion.”

In Kalyan Chandra Sarkar vs Rajesh Ranjan @ Pappu Yadav & Anr [8]After rejecting seven bail applications of the accused-respondent, the same court allowed the eighth application for bail, as the respondent was imprisoned for a period of 3 years with no possibility of trial being conducted in near future. An appeal was allowed in the Supreme Court against the said grant of bail on the contention that the High Court was wrong to grant the bail on the basis of delay in trial without considering the allegations by the prosecutions regarding the intensity of the case, the offence and threat of meddling with evidence and witnesses.

The same court in Kashmira Singh v. State of Punjab[9]"It would indeed be a travesty of justice to keep a person in jail for a period of five or six years for an offence which is ultimately found not to have been committed by him. Can the Court ever compensate him for his incarceration which is found to be unjustified?”

Another important principle of bail is that there is no limitation to the number of times a person can apply for bail, however it is important that the grounds for bail be different from the previous application, while applying for bail again. However, if we talk about Kalyan Chandra Sarkar vs Rajesh Ranjan @ Pappu Yadav & Anr[10], after denying bail to the applicant for quite a number of times, the court finally granted bail on the same grounds upon which he was previously denied bail.

The ongoing pattern of whimsiness in the discretion of the courts has been a genuine barrier in accomplishing the goals of justice. In cases of prominent people, bail is allowed without thinking about the intensity or severity of the case. These people walk free when the individuals influenced by them reel in foul play. It has become more of a normal practice than a deviation in India that the rich and powerful acquire bail quickly and effortlessly, and the poor mulls in prisons.

Another serious issue in the bail framework is the amount of bail bonds set by the court. The monetary and budgetary circumstance of an individual must be considered by the courts to arrive at a choice with respect to the amount of bail.

The Law Commission Report, in one of its analysis stated, that a large part of under-trial prisoners (almost about 70.6%) are unskilled or semi uneducated which is a mark of poor financial foundation. They are caught in the endless loop of destitution and ignorance combined with a nonstop infringement of their entitlement to individual freedom and respect. The financial status of an accused seems to have become the unequivocal factor for allowing pre-trial discharge.

The difference between bail and anticipatory bail is that while the former is granted only after the arrest of a person, the latter is granted before the arrest of a person, in case the person apprehends his arrest. While bail is granted for bailable offences, and in case of some non-bailable offences under Section 437 of CrPC, granting anticipatory bail is to be used by the courts sparingly.

InP. Chidambaram v. Directorate of Enforcement[11], the court followed the decision given by the High Court of Punjab in Gurbaksh Singh Sibbia Etc. v. State Of Punjab[12], that granting anticipatory bail particularly in cases of economic offences would affect the investigation process and shouldn’t be granted.


Two out of every three prisoners in Indian jails are undertrials because of the clashing suppositions given by the Supreme Court on whether reasons are to be given by the lower courts to give/refusal of bail. Granting of bail, which was once a normal issue, is presently exposed to amplified legal examination combined with the fear of defending it with reasonability.Since the court's jurisdiction is optional, it must be practiced carefully by balancing the important right of freedom of an individual and the interest of the society when all is said and done.

A proper system of checks should be brought about to curb the unfair discretion exercised by the courts. While this includes an issue of one's liberty, the ability to abridge such opportunity should be utilized judiciously and the liberty should just be provided through the procedure of law, keeping in mind the interests of the accused, and those who are vulnerable and feel that there is no justice that can be provided, so that people don't lose confidence in the legal system and resort to unfair means for justice.

[1] (1977) 4 SCC 308 [2] 1989 AIR 1529 [3] (2004) 7 SCC 521 [4] (2012) 1 SCC 40 [5] 1980 AIR 1632 [6] (2011)1SCC694 [7] 1978 AIR 429 [8] 2004 SCC (7) 528 [9] 1977(4) SCC 291 [10] Supra 8 [11]2019 SCC Online SC 1143 [12] Supra 5

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